Justices Uphold Transit Searches

The Supreme Court ruled Monday that police can subtly pressure passengers on buses, trains and other public transit systems to agree to be searched, saying officers need not tell the riders they have a right to refuse.

The 6-3 ruling upholds a common tactic in the war on drugs. Bush administration lawyers said these mass searches will also be useful in the war on terrorism.

Under the 4th Amendment, a police officer normally cannot search or seize a person without some evidence of wrongdoing. But that does not stop officers from asking people to allow themselves to be searched, the justices said.

Justice Anthony M. Kennedy described such encounters as “consensual” and “voluntary,” even when the officers are armed and have blocked the aisles of a bus.

Monday’s decision overturned a lower court in Atlanta, which said a “show of authority” by armed officers should not be allowed to intimidate people into giving up the privacy rights.

That ruling threw out drug evidence seized from two men who were arrested in Tallahassee, Fla., where the Greyhound bus in which they were riding had made a stopover.

Armed officers boarded the bus and walked down the aisle. They asked each passenger whether they could look at their bags.

Passengers Christopher Drayton and Clifton Brown were wearing heavy jackets and baggy pants on a warm day. An officer described them as overly cooperative.

After they freely agreed to let him check their bags in the overhead luggage rack, the officer said in a low voice, “Mind if I check you?”

The men did not respond directly, except to lift their hands. While two officers stood by, the third patted down the men and on both felt a hard object on the inside of their thighs. They were carrying packages of cocaine wrapped in duct tape.

The two men were convicted on drug-trafficking charges. But the U.S. Court of Appeals in Atlanta ruled the search was coercive and unreasonable because no reasonable person would think he was free to refuse.

Disagreeing, Kennedy said the encounter between the officers and the passengers was neither “coercive nor confrontational. There was no application of force, no intimidating movement, no overwhelming show of force, no brandishing of weapons, no blocking of exits, no threat, no command, not even an authoritative tone of voice,” he wrote in U.S. vs. Drayton, 01-631.

It is true the officers did not tell the men that they could refuse to be searched, Kennedy said. But, he added, the court has already made it clear that police officers need not “always inform citizens of their right to refuse when seeking permission to conduct a warrantless consent search.”

In dissent, Justice David H. Souter said the majority’s opinion had an “air of unreality” about it. “No reasonable passenger could have believed ... he had a free choice to ignore the police altogether,” he said. Justices John Paul Stevens and Ruth Bader Ginsburg agreed. But the bus-search case carried an air of unreality for another reason, Souter noted.

Airline passengers know they and their bags can and will be searched, and no one claims these searches violate the 4th Amendment. Because passengers are on notice they can be searched, they cannot claim the inspections violate what the court has called a “reasonable expectation of privacy.”

If buses or trains were terrorist targets, the government could announce that all passengers are subject to being searched at any time, and thereby defeat in advance the claims that a particular search was unreasonable.